Prosecutor's Request No 4 of 1974

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ, Prentice DCJ, Raine J
• Judgment Date: 28 November 1975
• Citation: [1975] PNGLR 365
• Court: Supreme Court
• Year: 1975
• Judgement Number: SC89

Supreme Court: Frost CJ, Prentice DCJ, Raine J

Judgment Delivered: 28 November 1975

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PROSECUTOR'S REQUEST NO. 4 OF 1974.

Waigani

Frost CJ Prentice DCJ Raine J

1-2 May 1975

28 November 1975

CRIMINAL LAW — Particular offences — False pretences — Intent to defraud — Obtaining by false pretence not necessarily showing intent to defraud — Criminal Code (Queensland adopted), s. 427.

Section 427 of the Criminal Code (Queensland adopted), (now s. 415 of the Criminal Code 1974) provides that "any person who by any false pretence, and with intent to defraud, ... induces any other person to deliver to any person ... anything capable of being stolen ... is guilty of a crime".

Held

The obtaining by a false pretence does not itself necessarily show an intent to defraud within s. 427 of the Criminal Code (Queensland adopted): no doubt it will usually do so, but it will always be a question of fact whether the accused fraudulently intended by the inducement to obtain property.

Balcombe v. De Simoni (1972), 126 C.L.R. 576 at pp. 582, 584, 589-590 per Barwick CJ adopted and applied.

Reference

This was a reference under s. 30 (1) of the Supreme Court (Full Court) Act 1968. The questions asked by the trial judge were as follows:

(a) Did I err in law in ruling that I was required to make a finding of fact as to whether the obtaining of the money was dishonest that element of dishonesty being additional to the intent to obtain the property by the false pretence?

(b) Did I err in law in ruling that s. 22 of the Criminal Code of Queensland (Papua, Adopted) was applicable to and could avail the accused in respect of his belief that he was entitled to sign the name of another person on a withdrawal form made out on the bank account of that other person and receive the sum of $125.00 therefrom?

(c) Did I err in law in ruling that for the Crown to establish that the accused had an intent to defraud for the purpose of s. 22 of the Criminal Code of Queensland (Papua, Adopted) it was not sufficient to establish merely that the accused intended to obtain the property by the false pretence?

(d) Did I err in law in holding that for the Crown to establish that the accused had an intent to defraud for the purposes of s. 427 of the Criminal Code of Queensland (Papua, Adopted) it was not sufficient to establish merely that the accused intended to obtain the property by false pretence?

Counsel

L. W. Roberts-Smith and A. M. Webb, for the prosecutor.

C. F. Wall, for the person charged at the trial.

Cur. adv. vult.

28 November 1975

FROST CJ: The findings of the trial judge and the questions of law referred to the Supreme Court for decision following the acquittal of the person charged at the trial are set out in the judgment of the Deputy Chief Justice.

The charge which was laid under s. 427 of the Criminal Code (s. 416 of the 1974 Code) was that the person charged, by falsely pretending to the bank teller that a document purporting to be a Bank of New South Wales savings account withdrawal form drawn by a named person, in fact the uncle of the person charged, for the sum of $125.00 was a valid Bank of New South Wales savings account withdrawal form, induced the teller to deliver to him that sum of money with intent to defraud.

There are two matters arising out of the form of the charge. First, the trial judge's finding that the obtaining of the money was not dishonest, an element which is repeated as the basis of questions (a) and (d), is appropriate to a different charge, also under s. 427, of obtaining money by false pretences. However, for the purpose of this reference I shall assume that it was the inducement which was found by the trial judge to be not dishonest, and that the questions should be understood in that sense.

Secondly, it is an essential element of the charge that the person charged should have induced the teller to deliver the money by means of a representation which was false in fact and which he either knew to be false or did not believe to be true (Criminal Code s. 426, now s. 415). At the trial the pretence alleged was apparently treated as one that the person charged represented to the teller merely that the signature on the withdrawal form was that of the uncle of the person charged, and the trial judge's finding was that a false pretence was made in those terms within that section. But that was not the pretence charged. Although the point was not argued before this Court, nor does it appear before the trial judge, the short answer to the prosecution may well have been that the trial judge's finding that the person charged honestly believed that he was entitled to write his uncle's name on the withdrawal form meant that he believed that the withdrawal form was a valid one. On this view there was no false prtence as charged within the meaning of s. 426 (now s. 415).

The point of the questions, however, concerns the element of intent to defraud. The view of Gibbs J in Balcombe v. De Simoni (1972) 126 C.L.R. 576 that the element is established if the person charged made a false pretence within the meaning of s. 426 (now s. 415) with the intention of inducing another to part with property is supported in terms only by the decision of the Full Court of the Supreme Court of Victoria in R. v. O'Sullivan [1925] V.L.R. 514, at p. 518. It is contrary to R. v. Williams (1836) 7 Car. & P. 354; 173 E.R. 158, in which Coleridge J said: "It is not sufficient that the prisoner knowingly stated that which was false, and thereby obtained (the property); you must be satisfied that the prisoner at the time intended to defraud" the complainant. The latter view was also taken in R. v. Carpenter (1911) 22 Cox C.C. 618 and R. v. Kritz [1950] 1 K.B. 82.

The facts of Balcombe v. De Simoni (1972) 126 C.L.R. 576 were very different from the present case. There the respondent, by falsely pretending to a Perth householder that he was a student from South Australia selected in a contest for $1,000.00 and an overseas trip to represent the youth of Australia on a goodwill tour, induced her to buy a cookery book which she did not want, and to pay $6.50 for the price of the book. The majority of the Court held that the only possible conclusion from the evidence was that the respondent made false pretences with the intention of inducing the householder to part with her money, that he had the intention of depriving her of her money by deceit and that he therefore had the intention to defraud. Barwick CJ who dissented, and with whom Walsh J agreed, plainly regarded the case, at the worst, as on the borderline of criminal liability, and held that there being no evidence on which it could be held that the respondent intended to do anything with the money other than provid the book, as was intended by the householder when passing over the money, there was no intent to defraud. Whether there was evidence of that "pervasive dishonesty" as it was termed by Barwick CJ at p. 584, sufficient to establish an intent to defraud, may well have been the subject of differing views. It is not necessary for the purposes of this case to consider the view of the Chief Justice that, "In relation to an intent to defraud what the parties intended should be done with the property or money obtained can never, in my opinion, be immaterial". Balcombe v. De Simoni (1972) 126 C.L.R. 576, at p. 584. I would however say that I do not find conclusive the two cases put by Gibbs J to illustrate his views to the contrary (1972) 126 C L.R. 576, at p. 596. In the illustration of the alms given the man pretending to be blind, a clear case of intent to defraud, the alms were not in fact used for the relief of a blind man, and in the case of a loan on a false pretence as to the security offered, there is the learest intention that the lender should act to his injury, and thus of an intent to defraud.

With respect I agree with Barwick CJ that the intention to defraud is a separate element of the charge and that whilst the intent may be inferred if no more is known than that the accused obtained money by false pretences, the intention to defraud is not necessarily established by proof of those elements alone. In particular I agree with and would adopt the passage of the Chief Justice's judgment at p. 582 which is cited in the judgment of Raine J, and also the following passage from the judgment of Walsh J which I set out in full:

"In his reasons for judgment the Chief Justice has written that the intent to induce and inducement in fact are necessary elements of that part of the offence which consists in the obtaining of property by a false pretence and that in addition there must be an intent to defraud by the obtaining of the property. The contrary view is that in the description of the offence there is not included, apart from the words 'with intent to defraud', any element of intention at all. According to that view all that is necessary in order to establish that a person has obtained property by a 'false pretence' (as...